Pre-emptive product patentability declarations

摘要

Successful pharmaceutical products are typically protected by a number of patents (as well, potentially as other Intellectual property) directed toward specific aspects. Frequently, a product is initially patented in the form in which it was originally launched but then later modifications and improvements are also the subject of further patent applications. As readers will undoubtedly appreciate, prosecution of patent applications (whether for a new chemical entity or, as here, secondary applications of a drug) can take years to reach grant or rejection. Even then, European Opposition or US inter panes review proceedings may be brought, thereby extending the uncertainty as to the final form of claims. In consequence, potential producers of related products face a nearly impossible task in attempting to determine whether their own version will or will not infringe some yet-to-be examined application. Launching a product carries the uncomfortable risk that amendments to the claims of a pending application may result In the new product infringing.